Appeals court halts portion of Harris County bail fix

State Sen. John Whitmire, D-Houston, is right to raise concerns about the Harris County Jail. Sheriff Ed Gonzalez, County Judge Lina Hidalgo and the commissioners must make improving conditions at the jail an urgent priority. “When you deprive someone of liberty, you have a special duty to protect them while they are in your custody,” Whitmire said.

State Sen. John Whitmire, D-Houston, is right to raise concerns about the Harris County Jail. Sheriff Ed Gonzalez, County Judge Lina Hidalgo and the commissioners must make improving conditions at the jail an

State Sen. John Whitmire, D-Houston, is right to raise concerns about the Harris County Jail. Sheriff Ed Gonzalez, County Judge Lina Hidalgo and the commissioners must make improving conditions at the jail an urgent priority. “When you deprive someone of liberty, you have a special duty to protect them while they are in your custody,” Whitmire said.

State Sen. John Whitmire, D-Houston, is right to raise concerns about the Harris County Jail. Sheriff Ed Gonzalez, County Judge Lina Hidalgo and the commissioners must make improving conditions at the jail an

An appeals court has reeled in a Houston federal judge’s order requiring that certain people charged with low-level offenses be released from custody whether or not they have the cash to pay bail.

The ruling this week by the 5th U.S. Circuit Court of Appeals came after 14 Harris County court-at-law judges objected to a recent order in the landmark 2016 civil rights lawsuit that upended the way bail works for thousands of people arrested on misdemeanor charges.

The 14 judges, who have opposed the lawsuit from the start, objected to portions of an updated order this summer that they said unduly inhibited the court’s discretion. The majority opinion by Circuit Judge Jerry E. Smith halted part of the Houston trial judge’s instructions calling for certain defendants to be released immediately on no-cost bail in cases where another person with the money who is arrested on the same charge would be released immediately.

‘Violates the mandate’

The appeals court left in place U.S. District Judge Lee H. Rosenthal’s requirement that the courts make individualized bail determinations within 48 hours for people jailed on misdemeanors. However, the circuit panel opinion said that despite Rosenthal’s “well-intentioned effort to comply” with the 5th Circuit’s instructions, the immediate release of qualified poor defendants “easily violates the mandate, which explicitly found that individualized hearings would remedy the identified procedural violations.”

In a dissenting opinion, Circuit Judge James E. Graves Jr. wrote that Rosenthal’s order corrects an inequity that is protected by the U.S. Constitution.

“However thorough and fair it may be, an individualized hearing 48 hours after arrest cannot ‘fix’ the deprivation of liberty and equal protection suffered by an indigent misdemeanor arrestee who is automatically detained prior to that hearing ‘solely because [she is] too poor to pay’ a preset amount of secured money bail,” Graves wrote.

Graves was the only African-American assigned to the three-man panel. Similarly, two African-American court at law judges have parted with their colleagues, opting not to oppose the indigent defendants’ lawsuit.

Judicial discretion

The majority opinion held that Rosenthal’s orders were too expansive and strayed from the court’s earlier instructions to “narrowly tailor” her 2017 injunction to address deficiencies that were pressuring judges to move too quickly. The 14 judges who questioned this portion of Rosenthal’s ruling were likely to win on the merits, the majority said.

The county sheriff and the county itself did not join the judges’ request for a stay. However, most of the misdemeanor judges felt Rosenthal’s order weakened judicial discretion and put public safety at risk.

Although he did not join the 14 judges’ appeal, Harris County Attorney Vince Ryan welcomed the ruling, saying the New Orleans-based court recognized the responsibility and discretion of judicial officers to determine conditions of release.

Ryan said his office is committed to a bail settlement that maximizes the number of people arrested on misdemeanor charges who are eligible for quick release on unsecured bail and also preserves victim’s rights.

The county has racked up more $6.7 million in legal costs, hiring dozens of lawyers to defend itself in the case, according to Ryan’s office. Pct. 1 Commissioner Rodney Ellis puts the county’s legal tab at more than $7.6 million.

Ellis disappointed

Ellis, a longtime advocate for criminal justice reform, contends the county is frittering away money and quibbling over technicalities, while poor people clock unnecessary hours and days behind bars. He said in a news release he is disappointed in the 5th Circuit’s finding that bail hearings may take place 48 hours after arrest.

“That time spent behind bars can cause significant harm to defendants who may lose their jobs or be unable to care for their families simply because they cannot afford bail, underscoring the real-world impact of a two-tiered justice system that allows wealthy defendants to walk free after paying bail and keeps poor people stuck behind bars,” Ellis said in the statement.

The circuit judges had asked Rosenthal to revise her order, allowing judges 48 rather than 24 hours to make bail determinations for defendants.

However, the circuit agreed with Rosenthal’s finding that the county’s bail practices violated due process and equal protection, unfairly discriminating against poor people and relegating them to “wealth based detention” while they awaited trial. Rosenthal noted in her original opinion that these high bail costs have catastrophic effects of poor people, causing defendants to lose jobs, get evicted and miss payments.

The class-action lawsuit, handled by two civil rights groups and a local law firm, was brought on behalf of a young mother, Maranda ODonnell who spent two days in jail because she couldn’t come up with $2,500 bail. It now includes all indigent misdemeanor defendants.